Did Rubio Lie to Mark Levin?

Mickey Kaus Columnist
Font Size:

On April 17, Sen. Marco Rubio went on Mark Levin’s radio show to sell the immigration amnesty bill from the “Gang of 8,” of which Rubio is a prized member. He brought up the legislation’s goal of apprehending 90% of illegal border crossers (in “high-risk” sectors)–alluding no less than four times in 17 minutes to its creation of a “border commission.” He used virtually identical language all four times:

“If, in five years, the plan has not reached 100 percent awareness and 90 percent apprehension, the Department of Homeland Security … will lose control of the issue and it will be turned over to the border governors to finish the job …. which is not a Washington commission, made up of congressmen or bureaucrats.  It’s largely led by the border state governors, who have a vested local interest in ensuring that that border is secure … and there’s money set aside in the bill for them to do it.” [Emphasis added]

Unfortunately for Rubio, Washington Examiner’s Byron York read the actual bill and noticed that, if the goals are not met, the job of the commission is almost entirely advisory–to make “recommendations to the President, the Secretary, and Congress” on how to meet them. (See pages 16 and 17.)  Specifically, the bill says the commission writes a report “setting forth specific recommendations,” sends it to the Government Accounting Office, and then goes out of business in 30 days. Nothing about taking over control, or the “issue,” or the policy or about finishing the job.

True, the bill does create a $2B pot of money for the DHS to use to carry out the commission’s recommendations–but there’s nothing that compels the DHS to actually spend it on all of them, or any of them, let alone to actually achieve the “90 percent apprehension” goal.

Nor, if the goal isn’t reached, does the bill delay the issuance of green cards to the already-legalized former illegals (as Rubio at one point seems to suggest to Levin).

Oh, and the commission isn’t “made up of the governors” of the border states–they only control four of the 10 commission seats. The other six are “Washington” appointments (see pages 14-15)

Aside from those things, everything Rubio said about the commission was true.

So did Rubio a) just dissemble to Levin, or is he b) clueless about the content of the bill on which he’s allegedly staked his career? You make the call! Some who are closer to the action than I am say “clueless.”

Either way, it doesn’t reflect well on Rubio, his role in the Gang of 8, or the Gang of 8’s handiwork. If you can’t tell the truth about something …

P.S. Rubio’s press aide, Alex Conant,  responds to my tweet

 He told Levin the truth. You can read more here: 1.usa.gov/17coRmJ

The link goes to a Rubio release which claims

 if the Commission recommends 200 additional miles of fencing, the Secretary of Homeland Security will be compelled to implement the recommendation. He or she will not be able to divert resources to other projects. The Comptroller General will review the plan to ensure the Commission’s recommendations can be achieved with the available funds, and then DHS must use the $2 billion on exactly what the Commission says [underlines but not boldface added]

I can  find no place where the bill provides that the Secretary of DHS is “compelled” to implement a recomendation of the commission, or “must use” the $2B on anything in particular. Maybe the Secretary can’t spend that money elsewhere, but he or she can spend it on the parts of the commision’s report he or she likes and not on the parts he or she doesn’t like–or can simply not spend it at all. 

Conant did not, after repeated Twitter provocation, point to a passage in the bill that says what he says the bill says. I think that is because the passage doesn’t exist.

That might be one reason why Democrats reportedly think  “their negotiators extracted more concessions than they thought possible.”

P.P.S.: Note that if the bill really did what Rubio says it does–hand actual policy control of border security from DHS to a commission–it might run afoul of a form of the “non-delegation doctrine,” which holds that Congress (or maybe the President) can’t formally delegate power to any old group–be it the first 400 names in the phone book or a prestigious Border Commission. The non-delegation doctrine fell into disuse during the New Deal but isn’t dead, I’m told. (Nor should it be–would it be constitutional for Congress to delegate all lawmaking power to the NY Times editorial board? [We”ve tried that-ed. OK, how about to  the Daily Caller Boat Party committee?]

Mickey Kaus